California Court of Appeals, Second District, Second Division
[As Modification on June 17, 2015]
APPEAL from judgment of the Superior Court of Los Angeles County, No. BC486560 Soussan G. Bruguera, Judge.
Haight Brown & Bonesteel, Jules S. Zeman; Goodkin & Lynch and Dan Goodkin for Plaintiff and Appellant.
Ervin Cohen & Jessup, Allan B. Cooper and Pantea Yashar for Defendant and Respondent.
A trial court has the power to issue an equitable easement authorizing a trespasser to continue her trespass in exchange for paying
damages, but only if, among other things, the hardship on the trespasser in ceasing the trespass is “greatly disproportionate” to the hardship on the land’s owner in losing use of the trespassed-upon portion of her land. (E.g., Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1009-1012 [126 Cal.Rptr.3d 838] (Tashakori); Christensen v. Tucker (1952) 114 Cal.App.2d 554. 560-563 [250 P.2d 660] (Christensen).) Here, we address what constitutes a “greatly disproportionate” hardship, and conclude that a trespasser’s hardship in having to remove her portable patio furniture does not qualify. We accordingly reverse the trial court’s issuance of an equitable easement, and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
Plaintiff Lilli Shoen (Shoen) and defendant Juliet Zacarias (Zacarias) are neighbors. Shoen and Zacarias own adjacent parcels on a hillside. Situated between them is a relatively flat patch of land a little more than 500 square feet in area. It is undisputed that most of the patch (approximately 481 square feet) is part of Shoen’s property. However, as a practical matter, the patch is accessible only from Zacarias’s property by a staircase built before she bought her property; the patch is not easily accessible from Shoen’s property given the slope and the fact that a hillside staircase currently on Shoen’s property does not connect to the patch.
When Zacarias purchased the property in 2003, she thought the patch was on her property and populated it with outdoor furniture-a cabana, a chaise chair, tables, and stools; none of it is set in concrete. In 2005, the prior owner of Shoen’s land surveyed the boundaries and discovered that the patch belonged to him, but told Zacarias she could continue to use it for as long as he owned the property. A year later, Shoen’s father bought the property and deeded it to Shoen around 2012. Shoen and her father learned of Zacarias’s use of the property in 2006, but said nothing about it until 2011, when Shoen communicated-orally and later in writing-her demand that Zacarias remove the furniture.
When Zacarias refused, Shoen sued for damages, as well as injunctive and declaratory relief, on theories of (1) trespass, (2) nuisance, (3) ejectment, and (4) negligence. Zacarias asserted, as an affirmative defense, that she was entitled to an equitable easement, and also countersued Shoen for damages and injunctive relief on theories of (1) prescriptive easement and (2) ...